IN THE PESHAWAR HIGH COURT,

BANNU BENCH

CRIMINAL APPEAL .NO. 115-B OF 2011

With murder reference No.3-B of 2011.

J U D G M E N T

Date of hearing ___03.6.2015_______________

Appellant-petitioner : Sultan Mehmood &

Anwar-ul-Haq,

Advocates.

Responden: Complainent By

Farooq Khan, Sokari

Advovate.

State by Saif-ur-Rehman,

Addl. A.G.

MUHAMMAD YOUNIS THAHEEM J.---

Through the instant appeal filed under section 410

Cr.P.C, the appellant, namely, Shamsullah Khan

has challenged the judgment and order dated

04.6.2011 passed by the learned Additional

Sessions Judge-III, Bannu, whereby the appellant/

accused has been convicted Under section 302 PPC

and awarded him the sentence of Death penalty

with payment of compensation amounting to

2

Rs.1,00,000/- (rupees one lac) payable to the legal

heirs of the deceased in terms of section 544-A

Cr.P.C, in default to suffer six months simple

imprisonment. The benefit of Section 382-B Cr.P.C

is also extended to him.

2. Precisely, facts of the case are that on

17th of December, 2005, Complainant Fazal

Mehmood Khan reported to Akhtar Ali ASI on his

visit to the place of occurrence at 0830 hours that

on the same day he alongwith his brother Haji

Akhtar Khan (deceased) was proceeding towards

Bannu Bazar, when they reached near the fields of

Mursaleen at 08.00 a.m, appellant/convict

Shamsullah who was already present there duly

armed with Kalashnikov, shouted at Haji Akhtar

Khan to halt, Haji Akhtar turned his face towards

him, but appellant/convict Shamsulah started firing

at him with intention to commit his murder, as a

result of which, he was hit, fell down on the

ground and expired on the spot. After the

occurrence, appellant/convict decamped from the

3

spot. Motive behind the occurrence was stated to

be a dispute over women folk.

3. The report of complainant Fazal Mehmood

Khan was reduced into writing in shape of

murasila, the contents of which were read over to

him and after verifying its contents, he signed his

report as a token of its correctness. The

Investigating officer sent the murasila for

registration of case through Constable Zar Khan

No.483 to Police station, on the basis of which

case FIR No.345 dated 17.12.2005 under section

302 PPC was registered in police station Mandan,

District Bannu.

4. Investigation was conducted in case,

as the appellant/convict remained absconder

therefore, challan under section 512 Cr.P.C was

submitted on 8.01.2006 against him. After

recording prosecution evidence in his absentia, he

was declared proclaimed offender and perpetual

warrant of arrest was issued against him vide order

dated 22.12.2006

4

5. Then appellant was arrested on

23.8.2008 and supplementary challan was

submitted against him on 30.8.2008. The learned

trial court after observing the formalities of

Section 265-C Cr.P.C, formal charge was framed

against the appellant, to which he denied and

claimed trial .

6. To prove the guilt against the

appellant/convict, the prosecution examined as

many as (11) witnesses, brief resume of which is

as under:-

PW-1 is the statement of Shafiq Khan

DSP who has submitted complete challan against

appellant u/s 512 Cr.P.C on 8.1.2006, on arrest of

appellant, Muhammad Jan CO Rural Bannu (PW-

2) has submitted supplementary challan on

30.8.2008, Muhammad Ali Shah DFC 57 (PW-3)

has completed proceedings in pursuance of warrant

U/S 204 and proclamation notices U/S 87 Cr.P.C,

Mir Ali Khan ASI (PW4) has incorporated the

contents of murasila in shape of FIR (Ex.PW 4/1),

5

Naimatullah Khan SHO (PW-5) has arrested

appellant Shamsullah on 23.8.2008 and issued his

card of arrest, Dr.Khalid Mehmood Khan (PW-6)

has conducted autopsy on dead-body of deceased

Haji Akhtar Khan, Sher Ali Baz (PW-7) has

identified dead-body of deceased, Akhtar Ali ASI

(PW8) has taken down the report of the

complainant in shape of murasila, prepared injury

sheet and inquest report of deceased, Sakhi Zaman

SI Investigation (PW-9) has produced appellant

/convict before the Magistrate concerned on his

arrest by the SHO. PW-9 is the statement of

complainant Fazal Mehmood, who has furnished

same scenario as that of FIR. Beside that he is also

marginal witness to the recovery memo vide which

the IO in his presence took into possession blood

through cotton from the place of deceased and

secured one empty of 7.62 bore from the place of

appellant/convict as well as garments of deceased

sent by the doctor from the hospital through

constable. Site plan Ex.PW 10/2 has also been

6

prepared by the IO at his instance. In the last,

statement of Hazrat Ali Shah Circle officer has

been examined as PW-11, who has conducted

complete investigation in the instant case.

Thereafter, statement of the convict/ appellant was

recorded under section 342 Cr.P.C, but neither he

had produced any evidence in defence, nor opted

to examine himself on oath in terms of section

340(2) Cr.P.C. The learned trial Judge after

considering the arguments of the learned counsel

for the parties addressed at the bar and scanning

the record, being found the accused guilty of the

offence, convicted and sentenced him as

mentioned above, vide the judgment, dated

25.5.2010.

7. Aggrieved from the conviction and

sentence, appellant preferred Cr. Appeal

No.71/2010 before the Hon’ble Peshawar High

Court, Bench DIKhan, which was accepted, the

judgment was set aside and the case was remanded

back to the learned trial court with the direction to

7

provide full opportunity to appellant for producing

his defence witnesses. The case was received back

to the learned trial court on 25.01.2011. Appellant

was summoned. In his defence he produced

Aminullah alias Taranai whose statement was

recorded as DW-1 on 4.5.2011, wherein he has

stated that he knows nothing about the present

occurrence, as he belongs to village Mira Khel

while the parties belong to village Baist Khel.

After close of defence evidence, arguments of

learned counsel for the parties were heard and vide

impugned judgment dated 04.6.2011, appellant

/accused was awarded with the sentence of death,

subject to confirmation by Hon’ble Peshawar High

Court Peshawar (Bench DIKhan). Fine of

Rs.1,00,000./- (one lac) is also leveled against him

to be paid to the L.Rs of deceased as compensation

under section 544-A Cr.P.C. In case of default in

payment of fine, appellant shall undergo simple

imprisonment for a term of six months. Benefit of

8

Section 382-B Cr.P.C is also extended in favour of

appellant. Hence the instant criminal appeal .

8. Learned counsel for the convict/

appellant vociferously argued that the impugned

judgment/order of conviction is against facts, law,

thus not sustainable under the law. He argued that

the prosecution had not been able to prove its case

against the convict beyond any shadow of

reasonable doubt, therefore, the learned trial Judge

has fallen into an error while passing the impugned

judgment of conviction and sentence; that there are

serious contradictions in the evidence of the

prosecution due to which its case is totally

untenable as there is not an iota of independent

evidence to substantiate the charge against the

appellant, while complainant Fazal Mehmood is an

interested witness being brother of deceased. The

learned counsel, therefore, argued that the learned

trial Judge has failed to appraise the evidence

brought on record in its true perspective while

9

convicting the appellant through the impugned

judgment which is liable to be set aside.

9. On the other hand, the learned Asstt.

Advocate General representing the State assisted

by the learned counsel for the complainant argued

that the convict/appellant has rightly been found

guilty of the charge leveled against him and thus

defended the conclusion drawn by the learned trial

Judge on almost the same grounds enumerated in

the impugned judgments; that the medical

evidence fully supports the prosecution version.

They further submitted that since the learned trial

Judge has held responsible the convict/appellant

for the murder of deceased and the offence carries

capital punishment, therefore, the sentence of

awarding penalty of death to him through the

impugned judgment is much enough to meet the

ends of justice which needs not to be discouraged.

10. We have heard the learned counsels

for both the sides and gone through the entire

record of the case and anxiously considered the

10

valuable arguments of the learned counsel for the

parties.

11. Perusal of the record reveals that in

the instant case occurrence took place on

17.12.2005 at 0800 hours, whereas the report has

been lodged on the same day at 0830 hours after

arrival of Akhtar Ali ASI (PW-8) to the spot on

receiving information about the occurrence, hence

the FIR has promptly been lodged within no time

on the spot. There was no chance for deliberation,

consultation, false implication or substitution. It is

a day light occurrence, appellant /convict is the

first cousin of complainant and deceased, well

known to each other, hence neither any question of

misidentification can arise, nor any such plea has

been taken by the appellant.

12. The single accused/convict has been

charged for murder of deceased Haji Akhtar Khan

(brother of the complainant). In such like cases,

when a close relative, near and dear has been done

to death , leaving the actual culprit and charging an

11

innocent person is rear phenomena. In this regard

reference can be made to a case titled

“Muhammad Iqbal VS The state” (PLD 2001-SC-

222), “Zahoor Ahmad Vs the State (2007 SCMR

1519) wherein it is held that :-

“The petitioner is a maternal cousin

of the deceased, as also the first

cousin of the deceased through

paternal line of relationship and

thus, in the light of the entire

evidence it has correctly been

concluded by the learned High

Court that the blood relation would

not spare the real culprit and

instead would involve an innocent

person in the case”

The Hon’ble Supreme Court of Pakistan in case

titled “Khizar Hayat Vs the State” (2011 SCMR

429), has held that :-

“In addition to that, it is a case of

single accused, who has fired upon the

12

deceased –Ghoulam Ghous, therefore,

substitution of a culprit is not possible

besides it is a rare phenomenon where

a witness whose close relative has been

murdered would substitute the accused

with an innocent person thereby

allowing the actual accused to go scot-

free”

13. As per prosecution case the

occurrence has been witnessed by the complainant

Fazal Mehmood (PW-10). No doubt the eye

witness is closely related to the deceased being his

real brother but his testimony could not be

discarded only on this ground, unless it is shown

that he is partisan, inimical, or interested witness.

Guidance can be taken from the case titled “Abdur

Rauf Vs the State” (2003 SCMR 522), wherein it

is ruled out that:-

“We may observe that relationship

itself is no ground to discard and

discredit the testimony of eye-

witnesses unless it is shown that

13

they are partisan and interested

witnesses. The eye-witnesses in the

present case undoubtedly are related

to the deceased but they have been

found entirely independent and

truthful, therefore their testimony

without looking for any other

corroborative evidence, would alone

be sufficient to establish the charge”

14. The PW/complainant Fazal Mehmood

(complainant) has given natural and cogent picture

of the occurrence and his testimony could not be

shattered despite being lengthy and taxing cross

examination. The contention of the learned counsel

for the appellant/convict that statement of PW-10

is contradictory on material points, i.e his presence

on the spot, mode and manner of the occurrence

and identification of the accused. When the learned

counsel for the appellant/convict was confronted

with the situation that to point out specific

14

contradictions instead of general allegations, he

could not point any major contradiction which may

shatter the case of prosecution. Some discrepancies

are inevitable bound to occur on account of lapse

of memory owing to the intervening period, as in

the instant case admittedly the statement of eye

witness recorded after lapse of more than two and

half year and after passage of such a long period

minor discrepancies may occur in the statements of

PWs and the accused cannot be get premium

thereof. In this respect, the Hon’ble Supreme

Court of Pakistan in case titled “Allah Bakhsh Vs

Ahmad Din (1971 SCMR 462) observed that

minor discrepancies in deposition of prosecution

witnesses of inconsequential nature cannot

reasonably be considered as good grounds in

disbelieving independent and disinterested

witnesses. If importance be given to such

insignificant inconsistencies there can hardly be

any conviction, for seldom is there a witness

15

whose evidence does not suffer from such

inconsistencies.

15. The prosecution case besides the

ocular account also get supports from

circumstantial evidence in shape of recovery of

blood through cotton, blood stained last worn

clothes of the deceased taken into possession by

the IO during the spot inspection and sent to the

FSL for chemical analysis. According to Serologist

report, it was human blood and of same group. The

doctor during post mortem examination also

observed the cause of death due to fire arm

injuries. All these material pieces of circumstantial

evidence established the place of occurrence as

alleged by the complainant and proved that the

deceased was done to death at the same place by

the accused in the mode and manner as alleged by

the complainant.

16. As per version of the complainant,

motive is stated to be a dispute over women folk.

This contention was not only agitated in FIR, but

16

also in his statement before the Court. During

cross examination the complainant has stated that

“It is correct that accused

Shamsullah was demanding the hand

of daughter of deceased Akhtar Khan

but the same was not accepted”….

The daughter of Akhtar Khan was

studying in religious Madressa while

the accused was not a man of good

character”

Otherwise too if the alleged motive is not proved,

it cannot fatal the prosecution case. In this regard,

reliance can be placed on NLR 2010 Criminal

page-9. The relevant citation (d) is reproduced

below:-

“For the last so many years, the

judicial consensus seems to be that it

is not for the prosecution to prove the

motive irrespective of the fact whether

it has been alleged or otherwise.

Question of motive, its importance and

17

its significance examined by the

Hon’ble Supreme Court in the case.

Reliance is also placed on 1995 SCMR

page 1776.

17. Medical evidence also fully

corroborates the version of complainant.

Deceased received 06 inlet and 6 exit fire arm

injuries. The recovery of blood stained earth

from the place of deceased and recovery of 7.62

bore empty shell from the place of accused also

supports and strengthen the prosecution version.

Furthermore, as per site plan, appellant/convict

is shown at point No.3, deceased at point No.1,

complainant at point No.2 in the site plan Ex.PB

and all of them are visible to each other and

there was no visual hindrance between three

places.

18. So far as the long abscondence of

appellant/convict is concerned, suffice it to say

that occurrence took place on 17.12.2005 while

18

appellant was arrested on 23.8.2008, meaning

thereby that he remained fugitive from law for

more than 2 years and half year for which the

learned defence counsel could not furnish any

plausible explanation. Had, the appellant been

innocent, he should have to participate in the

funeral ceremony of the deceased being his

cousin or at least appear within a reasonable

time, but he could not. When accused absconds

after the commission of offence an adverse

inference can be drawn against him because he

has committed an offence and absconded

himself to hamper the process of investigation of

the case. In this respect, reliance is placed on

2003 SCMR page 647. Furthermore prolonged

and noticeable abscondence of accused would go

a long way to corroborate and strengthen the

truth of prosecution version.

19. No doubt that the case is based on

testimony of a single witness but if the court is

19

satisfied that the witness is reliable, conviction

can be based on his testimony because it is the

quality to be considered and not the quantity. In

-this respect reliance can be placed on PLD 1980

Supreme Court page 225. The relevant citation

is reproduced below:-

“Conviction, even in murder

cases, held, can be based on

testimony of a single witness if

court satisfied as to witness being

reliable---Emphasis, held further,

laid on quality of evidence and

not on its quantity”

20. The evidence of a number of

witnesses shall not stamp the genuineness of an

occurrence nor evidence of single witness in

criminal case be discarded only on the ground that

it was not corroborated by other witness.

In case of “Mandoos Khan VS… the

state” .the state (2003-SCMR 884) wherein the

apex court has held that :-

20

(c ) Ss. 302/34 & 307/34…

Number of witnesses…Prosecution

must produce best kind of evidence

to establish accusation against

accused facing trial but

simultaneously it has no obligation

to produce a good number of

witnesses because it has an opinion

to produce as many as witnesses

which in its consideration are

sufficient to bring home guilt against

the accused, following the principle

of law that to establish accusation,

indeed it is not the quantity but

quality o the evidence which

matters….”

21. It is pertinent to mention here that

Cr.Appeal No.71/2010 against the first judgment

dated 25.5.2010 was accepted by the Hon’ble

Peshawar High, Bench DIKhan, whereby the

impugned judgment was set aside and the case

was remanded back to the learned trial court

with the direction to provide full opportunity to

appellant for producing his defence witnesses.

21

After remand, appellant was given opportunity

to produce his defence, In his defence he

produced Aminullah alias Taranai whose

statement was recorded as DW-1 on 4.5.2011,

wherein he has stated that he knows nothing

about the present occurrence, as he belongs to

village Mira Khel while the parties belong to

village Baist Khel. To a question, whether he

and Fazal Mehmood Khan (complainant) during

the month of December, 2005 were working

with the same broker or not? …he replied

that…he and Fazal Mehmood (complainant)

were working with same broker during the

relevant days, however, he does not know that

on the relevant day whether Munshi Fazal

Mehmood was present or he was working

somewhere else. He does not know whether on

17.12.2005 at early morning time, telephone call

was received at the office of said broker about

the present occurrence or not”, meaning thereby

that false charge of appellant by the complainant

22

could not prove. In such a situation when the

evidence produced by the appellant/convict by

himself as DW is against him then there would

be no reason to disbelieve the evidence produced

by the prosecution. There is no reason for the

complainant to charge the accused who is his

first cousin falsely and substitute him with actual

culprit. In case of murder, substitution of an

accused for real culprit is a rare phenomenon,

particularly when a single accused is involved.

22. It is the culture, habit and now an

established routine that whenever such like

occurrence took place, several or some time the

entire family members are charged, which for the

time being do harass and pressurize the accused

party, but ultimately the accused get its benefit and

the case fails due to false charge. But, the case in

hand is an exception to the common practice of the

locality. Here, one person is charged and neither

his brother, father or any other member of his

23

family is charged, which makes it crystal clear that

complainant has reported the matter with clean

hand and narrated the true story before the local

police in such a tense moment as well as before the

court and inspite of the fact that he was lengthy

cross examined by the defence counsel but no

contradiction could be extracted from his mouth.

23. The genuineness of the above is that

appellant/convict is directly charged in a promptly

lodged FIR. There was no chance for complainant

to charge him falsely, malafidely, for ulterior

motive or with consultation and deliberation.

Motive has been mentioned in the FIR, statement

as well as in cross examination, which was the

proposal of appellant/convict for engagement of

daughter of deceased and refusal of deceased has

been proved. Medical evidence in shape of

recovery of blood through cotton and one empty of

7.62 bore is in line with the prosecution version.

Long and un-explained absconding of accused is

there. All the PWs are consistent, coherent and

24

corroborating each other. No material

contradiction favourable to the accused was

brought on record.

24. So far as quantum of sentence is

concerned, the appellant has been charged for

murder of deceased Haji Akhtar which has been

proved beyond any shadow of doubt. The appellant

/convict is aged about 35 years and the role of

firing with intention to cause death solely

attributed to him and learned counsel for the

convict/appellant could not brought on record any

mitigating circumstance which could be taken into

consideration, hence the sentence awarded by the

appellant by the learned trial court is in accordance

with law and no exception can be taken from it.

25. For what has been discussed above,

the learned trial court has rightly appreciated the

evidence in its true perspective. We find no

illegality or irregularity, which may warrant

interference in the well reasoned findings of trial

25

court. Thus instant appeal stands dismissed and

conviction and sentence recorded by the trial

court is maintained. Murder reference No.3-B of

2011 is answered in affirmative.

ANNOUNCED JUDGE

03.6.2015

JUDGE

.